a PAW web exclusive column
4 , 2001:
The laws of war and child soldiers
Jeffrey Herbst, who specializes in sub-Sahara Africa, finds laws
proliferate, enforcement lags, and paradoxes abound
By Fran Hulette
Herbst, chair of the Princeton's politics department, recently completed
a paper titled "International Laws of War and the African Child:
Norms, Compliance and Sovereignty." His paper was among several
written for the Center for the Study of International Organization.
The Center, established in 1998, is a joint venture of the Woodrow
Wilson School and New York University's school of law. With offices
at NYU, it is an international focal point for policy research on
ways of renovating existing regional and global institutions, and
of developing fresh means of cooperation among governments and civil
society. The Center hopes to publish a collection of papers on the
relationship between the creation of international norms and implementation
in the near future.
Professor Herbst discussed
his research and the tragedy of child soldiers with PAW.
How did you become
involved in researching child soldiers?
I was asked by the Center
for the Study of International Organization to contribute a paper
near my own set of research interests in sub-Sahara Africa. I have
long been interested in what's called the laws of war. This is paradoxical
in some ways because war seems to be the most unregulated thing,
but in fact there are lots of laws of war - how you should treat
enemy prisoners, how you should treat noncombatants. Especially
interesting is the expansion of the laws of war in recent years.
The basic problem identified
by the study's principal investigators - my colleague Michael Doyle
here at Princeton and Ed Luck at NYU - is an increasing number of
international conventions, treaties, meetings, and protocols on
all types of issues, but lagging enforcement of those norms. The
question is: Should the laws or norms get so far ahead of enforcement
that people become cynical about things going on at the international
level and, therefore, regulation should essentially slow down? Or
is this just the nature of leadership, that people get ahead of
where reality is and then try to pull reality in the direction they
are trying to go.
What have you learned
in your research?
In Africa, unfortunately,
the number of civil wars have been significant and one of the phenomena
we've seen in the 1980s and 1990s is the appearance of the child
soldier, generally defined as combatants under 15. The child soldier
is one of those aspects of war the international community is trying
to regulate, first with the Convention on the Rights of the Child
in 1990, which was the most widely adopted human rights instrument
in world history, and now with a new international protocol dealing
specifically with child soldiers.
Enforcement of laws is
certainly lagging well behind. It's very hard to see that these
international conventions and protocols, which the African countries
are usually very quick to sign, have any effect on the ground. Here
are all these conventions and laws being passed in New York and
Geneva while the problem on the ground is, if anything, getting
In fact, these rules
represent some of the real paradoxes of international law today.
African countries want their opponents' practices to be regulated
by international law. They want the law to say, for instance, these
guerrillas we're fighting can't use child soldiers. But they don't
want guerrilla movements to have any kind of international legal
personality. They don't want them recognized in any way by the outside
world because the governments' official position is invariably that
this is not a political opposition, these are criminals, thugs,
So the problem now becomes
how to get the guerrillas regulated without acknowledging them.
This is one of the central paradoxes regarding the laws of child
soldiers. The new international protocol on child soldiers, promulgated
in 2000, says in part that this law applies to guerrilla armies,
but the application of the law to guerrilla armies bestows no recognition
on them. This, of course, is ridiculous.
Some governments too
are guilty of using child soldiers, especially governments that
were themselves former rebel movements. The current government of
the Democratic Republic of the Congo, formerly known as Zaire, was
a guerrilla movement that employed a significant number of children
in its fight against the old Mobutu government, and some of those
children remain with the army. Probably more often than not, more
child soldiers are in guerrilla movements. But governments are not
Because there are no
fines, because they can't send people to jail, the international
community tries to rely upon moral suasion to uphold the laws. Nongovernmental
organizations (NGOs) - increasingly prevalent in the international
human rights field - face the dilemma of having to make new law
with existing governments, which are themselves part of the problem.
If you accept the kind of legitimacy of international law, whom
do you deal with? These NGOs have had to get in the same ring with
people they don't view as necessarily legitimate or like, but they're
drawn into these things because only existing governments can make
new international law.
Another point my paper
spends a fair bit of time dealing with, is how nongovernmental organizations
want to comment on the conduct of warfare, but don't want to pick
a side to win. Even when the international community has decided
that one side is much worse than the other - for instance, there's
a consensus that the Ugandan government is much better in terms
of human rights practices than the rebel groups it's fighting -
no one says "we should help the Ugandan government win."
Even when NGOs are facing an obviously illegitimate, quite brutal
rebel force, the language of victory, which you would think is an
essential part of any discussion of military conflict, is missing.
Wars have become so much about human rights processes that people
don't have the confidence to talk in terms of military defeat or
The number of African
civil wars is neither clearly higher nor lower than in the past.
What's changed is that fighting now is less between regular armies
and increasingly between government forces and rebel groups. These
groups are kind of fused rebel movements/criminal gangs that often
coerce people into joining them, and of course, children are the
easiest people to coerce.
How do you conduct
research and get data?
My research has mainly
been about the international legal and political processes. All
of the data on child soldiers are rough guesses. After some of the
wars, such as the Liberian civil war, people did some on-the-ground
surveys of combatants. But no one can do any research while these
wars are going on, so all the estimates are well-informed guesses
Are there statistics
on death and injury rates among children?
There are and they're
all over the place. One statistic I think stands out is that the
percentage of civilians among total casualties is going up and up.
If you look at a classic war like World War I, the overwhelming
number of deaths were among combatants - soldiers killing soldiers.
Now it's estimated in these African wars that 50 to 60, maybe 70
percent of deaths are among civilians. Civilians are caught in between
armies of soldiers who are not well paid or well fed, and therefore,
are extremely vulnerable to coercion for food, for resources, for
all kinds of things.
- for lack of another word - of casualties is one of the most striking
trends of modern warfare. It means that women and children especially,
who make up the majority of noncombatants, are ever greater at risk.
This is a very modern phenomenon and particularly true in Africa.
It's quite striking that the violence in Kosovo just pales in comparison
to what's going on a half dozen African countries.
Are child soldiers
a problem of economics, AIDS, or what?
Child soldiers are connected
to the AIDS epidemic in part because these children are sometimes
AIDS orphans, who have no parents or older adults to look after
them. They work for and live with armies because that's the only
group providing for them. The orphan crisis in Africa is very much
related to the child soldier crisis and also a reflection of even
more fundamental trends in social disintegration. In many African
societies, age is profoundly respected and elderly people the most
respected. For children to now have the ultimate weapons of violence
is a sign that these societies have really undergone quite a profound
trauma, because it's suddenly the youngest elements of society who
are the most powerful.
You see a lot of child
soldiers in West Africa, however, and there's not a lot of AIDS
in West Africa. AIDS is clearly part of the equation but not the
whole thing. Economic and social disintegration are the other reasons
for the child soldier problem.
Have child soldiers
surfaced throughout history?
There were not nearly
as many child soldiers 30 years ago, even in Africa. Today child
soldiers are most prevalent in Sierra Leone, Liberia, West Africa,
the Democratic Republic of the Congo, Angola and Uganda to a lesser
extent. Sudan has a very extensive problem.
Not all African countries
have child soldiers. Some countries are either at peace or have
relatively well-organized militaries. Children are not good fighters;
they're terrible fighters. No self-respecting military would use
children. It's a sign of desperation or breakdown of society, and
of the military itself. Few people are more repulsed by the notion
of child soldiers than the regular military in most African countries.
What can the U.S.
do to address the problem of child soldiers?
It's a larger problem
of how you bring peace to these countries. You can't address the
child soldiers issue independent of these larger questions. That's
one of the reasons why conventions and legal protocols have been
of such limited use. The fundamental problem is not that people
happen to be using child soldiers, the fundamental problem is that
these countries have been at war so long all their basic institutions
and legal practices are grinding down.
You can't really address
the child soldiers issue until you bring peace to these countries.
Then you face the profoundly difficult question of integrating children
back into society because they have been traumatized. At the same
time they've been given tremendous power and to get them to be functioning
children and eventually functioning adults - they've missed critical
school years while in the bush - is an extraordinarily difficult
Fran Hulette is an occasional
contributor to PAW. You can email her at "Fran